GUILTY! A National Fraternity Criminally Convicted

Tim Burke, Manley Burke, tburke@manleyburke.com

“AND NOW, this 21^st day of November, 2017, the defendant, Pi Delta Psi Fraternity, Inc., having been found guilty of Count III, Involuntary Manslaughter, County IV, Aggravated Assault, Count V, Criminal Conspiracy, County VI, Hindering Apprehension – Concealing or Destroying Evidence, Count VII, Hindering Apprehension – False Information to Law Enforcement, County VIII, Criminal Conspiracy to Commit Hindering Apprehension – Concealing or Destroying Evidence, County IX, Criminal Conspiracy to Commit Hindering Apprehension/False Information to Law Enforcement, and Count X, Hazing, sentencing in this matter is deferred pending a pre-sentence investigation.”

With that order, the court memorialized the jury verdict which followed a six-day jury trial resulting in the first criminal conviction Fraternal Law has been able to identify if a national fraternity for a death of a pledge in a hazing incident.

According to its official website, Pi Delta Psi is an Asian American cultural fraternity with the goal of empowering the entire Asian American community and guided by four pillars – “Academic Achievement, Cultural Awareness, Righteousness and Friendship/Loyalty” — goals not unlike those of many other national/international fraternities and sororities.

An Opinion issued by the trial court in response to pre-trial motions¹ describes the facts.  On the weekend of December 8, 2013, a house in Monroe County, Pennsylvania was rented to host a weekend of activities to officially initiate new pledges in the Baruch College Colony of the fraternity.  One of the events planned for that weekend was described by the court as “The Glass Ceiling Function, which was ultimately fatal to Deng [Chun Hsien “Michael” Deng] was held outside on frozen ground….^2”  Based on the description provided to the court, the “Glass Ceiling Function” also known as the “Gauntlet,” involved blindfold and requiring them to run through a group of members while being pushed and tackled.  It was during that function that Michael Deng was tackled three to six times.  “After a particularly rough tackle… Deng fell, unconscious and did not get up….  Some of the fraternity members took Deng inside the house, changed his clothes, and laid him on the couch near the fireplace….  While on the couch, Deng’s body was rigid and he was making gurgling or snoring sounds.”³

While the national fraternity apparently has an anti-hazing public agreement in its Pledge Education Manual, according to the court in the omnibus pre-trial motion’s opinion:

“The National President was not only aware that the hazing was taking place, but had actually attended at least one Baruch Colony crossing-over ritual.  Furthermore, the National Fraternity President was aware of these rituals, and the National Fraternity published the specific hazing rituals in its pledge education manual and listed them among the fraternity’s ‘Core Functions.’”⁴

“A copy of a Pledge Educator Manual was admitted in evidence as Commonwealth Exhibit 8.  The manual instructs the possessor to delete it after reading.  Section 3 of the manual, known as “Functions and Rituals,” provides the ritual and functions that are required as a part of the pledge initiation.  This included the “Gauntlet,” which was the ritual at issue in Deng’s death….”

Making matters worse for the national fraternity, the court noted in its decision that “the Pledge Educational Manual warns that ‘pledges are not to do any physical pledging activities in public’ and ‘all serious pledge-related accidents and injuries’ are to be reported directly to the national PE ‘so that national [(i.e. defendant)] has enough time to prepare in case any action is taken against us.”⁵

After Deng was left to lie on the couch for a period of time, “possibly as long as an hour,”⁶ he was driven by members of the fraternity to a local hospital.  While at the hospital, one of the members did call the National President of the Fraternity seeking guidance and direction and was told “that the fraternity memorabilia must be hidden and the fraternity protected when talking to [the] police.”⁷  Apparently, following that direction, fraternity members did initially misrepresent what had happened to the police, leading police to believe that Deng had been “injured while playing a game outside, so police were initially unaware that Deng’s injuries were related to fraternity hazing.”⁸

While it may be unusual for a corporate entity to be criminally liable for this type of conduct, in Pennsylvania, pursuant to 18 P.A.C.S. Section 307, a corporation may be convicted if “the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the Board of Directors, or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment.”  The court treats the chapter president, pledge educator and pledge assistants as high managerial agents of the national fraternity because of “having duties of such responsibility that their conduct may be fairly assumed to represent the policy of the corporation and thus, the national fraternity can be held criminally liable for their actions.”⁹

The Court’s conclusion that the actions of chapter officers can impose criminal liability on a national/international fraternity is deeply concerning.  That is especially true if the chapter officer’s actions violate fraternity rules and policies.

But the court goes on to note that “even if the leadership positions of the Baruch Colony are not considered ‘high managerial agents,’ the National Fraternity is still liable for the conduct of the Baruch Colony of the night in question….  18 PA.C.S.A. Section 307 imposes liability on the Corporation, when the board or high managerial agent recklessly tolerates the conduct in question.”¹⁰   Taking rules seriously and being able to demonstrate a history of enforcement and lack of toleration for aberrant conduct would appear to provide a defense for a national/international fraternity.

In its pre-trial motions, the fraternity attempted to argue that it was protected by the First Amendment Right of Association.  In response, the court notes:

“The right to associate is recognized due to the inextricable link between association and the enumerated rights of the First Amendment and the role of association in facilitating self-governments.  The constitutional freedom of association guarantees an opportunity for people to express ideas and beliefs through membership or group affiliation.  However, the First Amendment right to associate is not absolute.  The First Amendment does not protect violence. ‘Certainly, violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder and gasoline may not constitutionally masquerade under the guise of advocacy.’  Samuels v. Mackell, 401 U.S. 66, 77 (1971).”

As the court notes in dismissing the Freedom of Association argument, the Fraternity “is not being prosecuted for the actions of its members alone, but for its authorization, ratification and direction to its members that their traditional use of hazing practices must be completed before a pledge is admitted to the fraternity.  Accordingly, a criminal prosecution against defendant does not unconstitutionally infringe upon the Freedom of Association.”¹²

The National Fraternity’s defense counsel attempted to convince the trial judge to include in her jury instructions a special instruction on Freedom of Association stating:

“Freedom of Association, that is the freedom to freely associate with others of like mind and inclination and to engage in expressive activity, is protected from government interference by the First Amendment and Fourteenth Amendment to the Constitution of the United States.  The Freedom of Association is also protected by Article One of the Pennsylvania Constitution.

“The Freedom of Association includes not only the freedom of speech, but also the freedom to gather together and to act expressively, which includes the freedom to conduct rituals, rites, and practices that do not pose an unreasonable risk of harm to others.

“The state may not prohibit individuals who choose to associate themselves in religious, fraternal, athletic, sporting, charity, or other organizations from gathering together, speaking freely among themselves, or from conducting rituals, rites, and practices that do not pose an unreasonable risk of harm to others.”

“In applying the Pennsylvania hazing statute to the case before you, you must keep in mind the constitutional protections of Freedom of Association and apply them to the facts in this case.”

But the judge apparently following the conclusions reached in the opinion of the pretrial motions declined.

The Fraternity was convicted following a 6-day trial and five hours of deliberation by the jury.  The Fraternity was acquitted of the two most serious charges – third-degree murder and voluntary manslaughter.  Individuals convicted of the range of crimes of which the fraternity was convicted could be easily sentenced to more than 20 years in jail.  Of course that won’t happen to a corporate entity.  It can only be fined.  In this case, fines could total well over $100,000.  According to several press reports, the prosecution will also seek to ban Pi Delta Psi from operating on any Pennsylvania college campuses.

In the meantime, four members of the Fraternity involved in Deng’s death have already pled guilty to voluntary manslaughter.  They are awaiting sentencing and testified against the national fraternity in the Fraternity’s trial.  According to an article by Andrew Scott posted in the Pocono Record on November 21, 2017:

“Attorney Wieslaw Niemoczynski represented the Fraternity as a corporate entity separate from its members.

In his closing argument to the jury, Niemoczynski called the four frat members, who have pleaded guilty to fatally injuring Deng, ‘opportunists.’  “They worked out a deal with the prosecution for lighter sentences by agreeing to testify that the Fraternity’s national office knew about but didn’t stop rampant hazing in time to prevent Deng’s death, he said.”

The national fraternity apparently did have an anti-hazing policy.  At least in part it was developed to obtain insurance.  What is not clear from what Fraternal Law has been able to learn is when the anti-hazing policy was adopted, when it was distributed and whether at the same time, pledge manuals were continuing to distribute information about conducting the “gauntlet,” or “glass ceiling” ritual.  What appears to be clear is that the historical requirements of dangerous initiation rituals published in national material and discussed at national conventions established a tradition that the Baruch Colony followed.  It led to both the tragic death of Michael Deng and the conviction of his would-be national fraternity, Pi Delta Psi.

Clearly, the defense of the fraternity was hampered by several factors.  Perhaps most prominent was the role of the National President.  Not only had he attended a prior Baruch Colony Glass Ceiling event, but the National President was complicit in the effort to cover up what has actually happened when he directed that the fraternity be protected when the colony members involved talked to police.  The National President himself did end up pleading guilty to issues relating to attempting to deceive law enforcement.  It also did not help that while there was a published anti hazing policy the efforts to enforce it were inconsistent at best and did little to overcome the long history of encouraging rituals which may have originally been intended to be conducted in a safe and largely symbolic way but had grown over time into harsh, dangerous and sadistic acts that were known to at least the National President.

It is obvious that the number of criminal charges brought against individuals across the country who have engaged in hazing and caused serious injury or death is growing.  It should.  It may be that the Pi Delta Psi facts are a one off and other national fraternities are not likely to face criminal charges for conduct by its individual members or even a chapter, but that remains to be seen.

1      Footnotes 1 thru 12 are all taken from the Opinion of the Court in Commonwealth of Pennsylvania v. Pi Delta Psi, Court of Common Pleas of Monroe County, Commonwealth of Pennsylvania, 2578 CR2015, dated March 24, 2017.