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MIAMI (CBSMiami) — The preliminary hearing in the hazing death of a Penn State student resumed Thursday morning.

Timothy Piazza died in February after a fraternity event that involved heavy drinking.

The lawyers for 16 defendants want the case thrown out. They argue the evidence does not warrant a trial.

Now, an attorney who is questioning a key prosecution witness is speaking out.

“In Joey Ems case, charges should have never been filed,” said Attorney William Brennan.

Brennan represents Joseph Ems Jr., who is facing one count of reckless endangerment – a misdemeanor.

Prosecutors say Ems can be seen on surveillance video striking Piazza hard in the abdomen while he was drunk and incapacitated.

“Joey Ems makes what I would call a cameo…and we presume he may have tapped him on the torso like hey bud, wake up. That’s not criminal,” said Brennan.

Piazza would later die of a ruptured spleen, among other injuries, according to a pathologist.

Eighteen members of the now shuttered Beta Theta Pi fraternity have been charged. Of the 10 with misdemeanors, two waived their right to the preliminary hearing. Eight others were charged with involuntary manslaughter and aggravated assault – the most severe charges.

Tom Kline is the Piazza family’s attorney.

“Some were responsible for the planning, some were responsible for the execution, and some were responsible for the cover up, and some were responsible for 1, 2 and 3,” said Kline.

Piazza, a sophomore, was gravely injured during what prosecutors allege was a night of drunken hazing.  The 19-year old’s blood alcohol content was estimated at roughly 4 times the legal limit.

He fell down a flight of stairs and hit his head repeatedly, often in view of his fraternity brothers.  No one called for help until the following morning.

“We have a friend who’s unconscious. He’s… he hasn’t moved… probably going to need an ambulance,” you can hear in a 911 call that morning.

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