Thursday, August 27, 1998 LAWYER SEEKS TO QUASH HAZING INDICTMENTS Motion could be feat of legal judo -- using victim's arguments against him By MATT CHITTUM ROANOKE TIMES The VMI cadets' attorney also argued that the law gives undue power to Virginia college heads and is unconstitutionally vague. The attorney for three Virginia Military Institute cadets indicted for hazing a freshman at the school last year asked a judge Wednesday to declare the law unconstitutional and quash the indictments. If Lexington attorney Tommy Spencer's motion is successful, it will be a nifty feat of legal judo - using the victim's arguments against him. In parts of his motion, made in Lexington Circuit Court, Spencer employed complaints about Virginia's hazing law made by the family of the victim, George Wade Jr. of Henrico County. The law gives undue power to the heads of Virginia colleges in prosecuting hazing charges and is unconstitutionally vague in defining what kind of behavior constitutes hazing, Spencer argued. The Wade family made the same complaints about the law while struggling to get justice for their son. The special prosecutor in the case, Buena Vista Commonwealth's Attorney Mike Irvine, has a month to respond to Spencer's motion. Rockbridge County Circuit Judge George E. Honts III will make a ruling then. Wade left VMI last winter and later accused three seniors of striking him repeatedly on the buttocks with belts and coat hangers. VMI suspended the three seniors, Jonathan Gonzales of Mechanicsville, Thomas Michael Upshaw of Caroline County and Charles Travers "Buck" Clemons of Richmond, but declined to charge them with hazing. Under the common interpretation of Virginia's 60-year-old anti-hazing law - which was passed after a series of hazing incidents at VMI - any criminal charge of hazing at a state school must begin with a finding of hazing by the school's head. At VMI, that would be Superintendent Josiah Bunting III. The Wades complained that the law gives too much discretion to the college, which would be embarrassed by the publicity and might open itself to a lawsuit. Spencer argued that the law unconstitutionally usurps the power of the commonwealth's attorney and gives it to the "presiding officers" of state colleges. The law is a violation of the separation of powers guaranteed by the constitution, he argued. The legislative branch of government cannot take power away from a member of the executive branch, which includes elected state prosecutors, Spencer wrote in a brief outlining his claims. The law - which says it is unlawful "to haze, or otherwise mistreat so as to cause bodily injury, any student at any school, college or university" - also fails to define hazing clearly enough, he argued. The Wades have made the same complaint about the law. Kent Willis, director of the Virginia chapter of the American Civil Liberties Union, said Spencer "makes a good point." "It probably has every deficiency you can have in a law," he said. "There should be some recourse for students who have been assaulted in this way, but if the law available is unconstitutional, then it's time to go back and fix it." The Wades have said their mission in pursuing the charges is to get justice for their son, who is now attending an undisclosed out-of-state college, and to make VMI a safer place for other cadets. If Spencer's argument prevails, George Wade Sr. said, it would be a loss for his son, but "at least he's accomplished one of his goals. "I think it definitely needs to go through the legal system and be straightened out," he said.