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NIU students’ defense lawyers: State’s anti-hazing law ‘vague,’ ‘broad’

David Bogenberger

David Bogenberger

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Updated: March 11, 2013 6:50AM

Illinois’ anti-hazing law is so broad that it’s nearly impossible to defend 22 college students charged in the alcohol-related death of a freshman at a DeKalb fraternity party, defense attorneys say.

The open-ended hazing statute, in fact, has several defense attorneys involved in the Northern Illinois University case already weighing a constitutional challenge to the law.

“It’s vague, it’s too broad, it leaves so much open to interpretation,” said attorney John Donahue, who represents former Pi Kappa Alpha president Alex Jandick.

Though it’s a legal longshot, a successful pre-trial challenge could result in the law being declared unconstitutional and the hazing charges against the students tossed out.

Jandick, 21, of Naperville, and four other officers of the now-suspended NIU fraternity chapter face felony charges stemming from the Nov. 2 death of David Bogenberger.

The 19-year-old Palatine man was discovered dead in the DeKalb frat house following a two-hour pledge event in which authorities allege he was given rapid-fire questions to answer, then provided vodka to drink after each response.

An autopsy found his blood-alcohol level was more than four times the .08 limit at which a driver is legally considered drunk. Though Bogenberger died of an irregular heartbeat, the autopsy determined alcohol intoxication was a “significant condition” that contributed to his death.

In December, Jandick and four other fraternity officers — event planner Steven Libert, pledge advisor Omar Salameh, chapter vice president James Harvey and chapter secretary Patrick Merrill — were all charged with felony hazing.

Jandick, Salameh, 21, and Libert, 20, are scheduled to be in court Monday in DeKalb County.

Another 17 students who were at the event were charged with misdemeanor hazing.

But several defense attorneys contend the anti-hazing law is so wide-ranging that virtually any initiation activity for any school organization could result in charges if someone is harmed — even unintentionally or accidentally.

The law, specifically, doesn’t require that the actions taken are dangerous or illegal.

The only factors cited are that a student is required to take part in some activity to join an organization or group during an event that isn’t sanctioned by the school — both of which occurred in Bogenberger’s death, authorities said.

Those provisions simply aren’t specific enough to justify filing criminal charges, several attorneys contend.

“That statute is unclear about what acts are illegal. It’s unconstitutionally vague,” said defense attorney Richard Kayne, who represents Libert.

The law seemingly doesn’t require prosecutors to show that those charged took any direct or specific actions that caused Bogenberger’s death, Donahue argued.

“It leaves so much discretion in who gets charged,” Donahue said.

Those legal arguments might be worthwhile for defense attorneys to pursue, one legal expert said.

“It’s certainly a way to attack the charges. The constitutional requirement is that a law can’t be overly broad, vague or ambiguous,” said Sam Amirante, a former Cook County judge now in private practice.

A lawyer representing Bogenberger’s family declined to comment specifically, but noted Illinois has one of the strictest anti-hazing laws in the country.

DeKalb County State’s Attorney Richard Schmack, who is prosecuting the NIU cases, couldn’t be reached for comment.

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