by Geoff Rushton
The Centre County District Attorney’s office and an attorney for the Alpha Upsilon chapter of Beta Theta Pi made arguments Friday at a hearing in Bellefonte over motions to return video surveillance equipment and footage.
The video from inside the former fraternity chapter’s house at Penn State has been key evidence in the prosecution’s case against the fraternity and 18 former members for charges related to the death of pledge Timothy Piazza. The 19-year-old from Lebanon, N.J. suffered fatal injuries during an alcohol-fueled bid acceptance night on Feb. 2, and hours of video from that night and the following morning were used in grand jury proceedings and in the preliminary hearing for the defendants, which is set to continue next week.
For months, the fraternity chapter has been trying to get two digital video recorder boxes and the surveillance footage returned. Centre County President Judge Thomas Kistler has previously ordered for the equipment to be returned, but reversed that on appeal from District Attorney Stacy Parks Miller.
Kistler subsequently ordered both State College Police and the fraternity chapter to designate forensic video analysts to agree on a method to duplicate the full contents of the equipment. But the equipment was sent to the FBI earlier this month by the DA’s office for further forensic analysis.
Last week, Michael Leahey, attorney for the Alpha Upsilon chapter, filed a motion to compel the return of the equipment.
State College Police Lt. Keith Robb testified on Friday that investigators first received consent from fraternity president Brendan Young to download the video footage on Feb. 6. Police found that the amount of data on the recorders was too large to download on an external hard drive and would take days to complete.
Police then received a second consent for search and seizure that day from the chapter’s live-in adviser, Tim Bream, to take the recorders to the police department and return them when they were finished.
Leahey contends that meant they would be returned when the relevant footage was downloaded. Robb testified that he took it to mean when the investigation was completed.
After the equipment was taken to the police station, a search warrant was obtained for the data stored on the boxes. A second search warrant was obtained in early August when police discovered evidence that some footage may have been deleted on the same day police seized the equipment.
Parks Miller argued that the search warrants alone would allow police to retain the equipment. She further argued that rules of discovery don’t entitle the defense to have the full video footage contained on the recorders returned before the case is finished.
She also said that once the preliminary hearing is completed and defendants are arraigned, defendants will receive video through discovery as determined by the court.
Leahey did previously obtain footage from the night and morning in question on grounds that it was needed for a civil case over the future of the fraternity house brought by chapter alumnus Don Abbey. He has argued, however, that the recorders should contain many more days of additional video and that the video files provided had been modified after they were in police possession.
The video also is needed, Leahey argued, because of the threat of civil action by former members who were evicted from the house after Penn State permanently revoked the fraternity’s recognition.
Parks Miller countered that Leahey has “abused this process,” by obtaining the video for civil action, then sharing it with other defense attorneys in the criminal case. She said that “turned the preliminary hearing into a circus,” with attorneys moving for additional video, beyond the three hours shown on the first day of the hearing, to be exhibited in court.
Leahey said that decision comes back to a central argument over the return of the equipment — that his client owns it and the prosecution has not established it as contraband. He also argued that Kistler specifically stated the video was not subject to grand jury secrecy.
He said that it was after Parks Miller’s appeal of the scheduling order for forensic analysts to be named to agree on a duplication method was quashed that police found additional evidence and the equipment was sent to the FBI for analysis.
“This is an orchestrated effort by the District Attorney to delay the issue until it’s too late to have any meaningful use to us,” Leahey said.
Parks Miller denied that, arguing that the discovery showed that the video is crucial evidence for police in their investigation. She also said that Leahey knows the FBI is qualified to make copies of the video as needed.
Kistler said he will make a decision soon, but that it likely will not come before the preliminary hearing resumes on Aug. 31.
Parks Miller said during the hearing on Friday that she expects the preliminary hearing to conclude next week.