Two of the Cal Poly fraternity members accused of crimes in the alleged alcohol-related hazing death of Carson Starkey in 2008 plan to appeal a judge’s decision Monday to allow the cases to proceed.
The lawyers for Haithem Ibrahim and Zacary Ellis argued Monday that the cases should have been dismissed because of insufficient evidence at the preliminary hearing held in August.
Starkey, an 18-year-old freshman from Austin, Texas, was found dead from alcohol poisoning at 551 Highland Drive in San Luis Obispo on the morning of Dec. 2, 2008.
Starkey was pledging Sigma Alpha Epsilon the night of the fraternity gathering.
Ellis’ attorney, Richard Conway, expressed his condolences to Starkey’s family, who were in San Luis Obispo Superior Court on Monday when Judge Hugh Mullin denied the motion to dismiss the cases.
Lawyers for Ibrahim and Ellis now plan to appeal their cases to the California 2nd District Court of Appeals in Ventura.
Conway said after the hearing that each pledge drank as much or as little alcohol as he wanted on the night of Dec. 1, 2008.
“We believe the evidence supports individual decisions about how much alcohol to consume, and tragically and unfortunately, that decision rested with Carson Starkey,” Conway said.
Ibrahim and Ellis have each pleaded not guilty to felony hazing causing death and misdemeanor furnishing alcohol to a minor causing death.
Ibrahim’s lawyer, Michael Burt of San Francisco, argued in his legal brief that Starkey “voluntarily drank the alcohol to the point of extreme intoxication.”
Burt contended that someone who gives alcohol to another person isn’t legally responsible for injuries, but rather the person’s voluntarily consumption is to blame — even if that person is a minor.
Ibrahim was Starkey’s “big brother,” and Ellis was the pledge educator of the fraternity on the so-called “Brown Bag Night” in which a group of pledges allegedly were assigned quantities of alcohol to consume by the active fraternity members.
The prosecutor has argued that both defendants were active participates in a hazing ritual that directly led to Starkey’s death.
Deputy District Attorney Craig Van Rooyen has argued that the pledges were “conditioned to obey the orders of Zac Ellis” and cited witness statements that they couldn’t look at Ellis in the eye and were told to line up when he entered the room.
Van Rooyen said Ibrahim had responsibility in selecting the alcohol that Starkey was supposed to finish that night.
Ellis allegedly told the pledges to start drinking the alcohol at 10:30 p.m. on Dec. 1, 2008, and that he wanted to go home by midnight.
A witness said Ellis told the pledges as they were drinking that they didn’t have to finish, according to testimony during the preliminary hearing.
Burt also argued that no evidence was presented that shows Ibrahim could have known Starkey would “guzzle” the alcohol given to him — which included rum, beer, a Sparks alcoholic beverage and Everclear, a natural-grain spirit that consists of 75 percent alcohol — in a matter of minutes.
Burt said Ibrahim held no leadership role in the fraternity and didn’t perform any act with intent to kill anyone.
Another fraternity member, Matthew Mito, poured out some of his alcohol at the event, trying to hide it from the others, Burt pointed out.
Conway also argued that “Mr. Ellis was in no way a participant in purchasing the alcohol or making the determination of what alcohol was provided.”
Starkey’s blood-alcohol level was measured between 0.39 and 0.44 percent and caused his death, according to tests after his death. That’s about five times the legal limit for driving, which is 0.08.
The attorneys have 15 days to file the appeal to the district court.
Two other members of the fraternity — Russell Taylor and Adam Marszal — have denied similar misdemeanor charges.