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Judge weighs hazing expert’s testimony in attack at Creighton

February 16, 2018 GMT

He pushed and punched one of his best friends, for no reason.

He lay on the floor of his Creighton University dormitory, completely incoherent.

He then got up, paced and rambled some more, telling those around him: “I have monkey DNA on my skin and they’re going to eat my brains and your brains.”

In short, there was no dispute that Christopher Wheeler wasn’t acting like himself a year ago this week, when the 19-year-old drank and smoked pot — and attacked a fellow student, swiping a knife across her neck, said Steve Lefler, Wheeler’s attorney.

“This just wasn’t Mr. Wheeler,” Lefler said. “Everyone who knew him said his actions (that night) were inconsistent with the person they had come to know.”

The question now is whether Judge Shelly Stratman will allow jurors to hear testimony to that effect at Wheeler’s April 30 trial on charges of second-degree assault and weapon use in the February 2017 attack. The female student has since recovered, with about a 4-inch scar on her neck.

Lefler not only wants the judge to allow testimony about possible involuntary intoxication; he wants jurors to hear about the hazing that he said occurred at the now-shuttered Phi Kappa Psi fraternity on Creighton’s campus.

A defense expert, Dr. Terry Davis of Omaha, testified at a pretrial hearing Tuesday that he thinks Wheeler, then 19 and a Phi Psi pledge, was slipped something other than the alcohol, Adderall and marijuana that he admitted to ingesting in the day before the attack. Wheeler, who has attention deficit disorder, has acknowledged that he took two Adderall pills that day — twice as many pills as he normally takes. He also drank beer and vodka and smoked marijuana.

Lefler and Davis have no proof of another substance.

But Davis said tests have a hard time detecting drugs — such as synthetic marijuana or bath salts — that can cause psychotic behavior.

And Lefler pointed to the emails and computer searches of the fraternity members in the days after the attack. In one, a fraternity member said, “We didn’t sell that LSD to him, did we?” Another fraternity member did an Internet search: “How long does LSD stay in the system?”

Prosecutors Ann Miller and Sean Lynch noted that Wheeler’s urine and hair follicle tests revealed nothing other than the presence of marijuana. A test of the bong that Wheeler used revealed no other drugs besides pot. None of the three other fraternity members who used the bong acted in an erratic manner.

And, Miller pointed out, an officer who was the first to detain Wheeler said he understood and answered all of his questions while sitting in the back of a cruiser.

Davis said that doesn’t change his opinion that Wheeler had been slipped a hallucinogen.

“Severity of symptoms can wax and wane over time,” Davis said.

Stratman will decide whether Davis or a hazing expert can testify at Wheeler’s trial. Lefler has asked that Wheeler be declared indigent — and that the court pay for any further testimony of Davis and the other expert. Wheeler’s father is a physician but Wheeler, now 20, is an adult who is in community college and works part-time.

Such a request will set up a fight from Douglas County Attorney Don Kleine, who opposes using taxpayer funds for private defense. Kleine has noted that defendants who run out of money have recourse for representation — via the Public Defender’s Office.

Lefler said he would wait to request that taxpayers pay for expert fees, depending on whether Judge Stratman allows them to testify at trial.