Northwestern Journalism Students Harassed by Illinois State Prosecutor

The work of many Northwestern University Medill School of Journalism students,
under the direction of investigative journalism professor David Protess as part
of the Medill Innocence Project, has helped lead to the release of 11 wrongfully
convicted inmates, and when former Illinois Gov. George Ryan dropped sentences
of everyone on Death Row before he left office, he acknowledged that it was
partly because of the wrongful convictions resulting from the research done
by Protess and his students.

Northwestern undergraduate journalism students continue to gain firsthand experience
in investigating wrongful convictions under Protess as part of the Innocence
Project, but the investigation into one case – of Anthony McKinney, who was
convicted of shooting and killing a security guard in 1978 and whose murder
conviction is being reviewed – has stirred recent controversy.

That’s because staffers in the Cook County state’s attorney’s office have demanded
that they need students’ grades, grading criteria, syllabus and e-mail messages
related to the students’ investigation. Northwestern University and Protess,
though, argue in court documents that turning over so many materials is burdensome
and not relevant to deciding whether McKinney should be exonerated. A court
date to address these matters is set for early November.

The state’s attorney’s office also has argued that students may get better
grades if they developed evidence that could lead to McKinney’s exoneration.
Also, the state’s attorney’s office contends that Protess and his students are
not real journalists.

Protess moved to quash the state’s attorney’s subpoena demanding students’
grades, grading criteria, syllabus and e-mail messages. He said the state’s
attorney’s office is asking for unnecessary materials that don’t address McKinney’s
case.

“Prosecutors can get all the answers they want from the witnesses in the
McKinney case without harassing my students,” Protess said. “The subpoena,
if enforced, actually would set a dangerous precedent for law enforcement. Does
State’s Attorney Anita Alvarez really want defense attorneys to be subpoenaing
the performance reviews of its investigators and prosecutors to determine if
they were rewarded for finding evidence or guilt and punished for finding evidence
of innocence? I doubt it.”

Sally Daly, spokesperson for the state’s attorney’s office, declined to be
interviewed. In court documents, though, the state’s attorney’s office contends
that the office is interested in seeking truth and justice.

Donald Craven, interim executive director of the Illinois Press Association,
said, “I think the subpoena is a little broad. I think the subpoena is
issued in violation of the Illinois Reporter’s Privilege Statute for seeking
information that the state’s attorney is not entitled to have.”

As for the state’s attorney’s office suggesting that students are not real
journalists, Craven said, “They are doing prototypical journalism.”

Attempts last week to seek comment from Medill Dean John Lavine were unsuccessful.
Also, this week, a secretary in the dean’s office said Lavine is out all week
and is unavailable for comment.

Protess and his journalism classes began investigating McKinney’s case after
McKinney’s brother Michael contacted the Innocence Project, which Protess created
in 1999. Nine teams of student reporters spent three years researching the case,
starting back in fall 2003. The students concluded that McKinney had been wrongly
convicted of killing security guard Donald Lundahl in September 1978 in Harvey,
a south suburb of Chicago.

The Innocence Project’s Web site reads, “The actual perpetrators were
widely known at the time of the crime, yet law enforcement officials arrested,
prosecuted and sought the death penalty for an innocent teenager who happened
to be near the crime scene because he was being chased and needed their help.”

Students interviewed two men who recanted their eyewitness testimony and claimed
that police beat them until they made up a story against McKinney. Also, students
interviewed two men who allegedly chased McKinney the night of the crime. The
men admitted pursuing him after a chance encounter because they were angry that
McKinnney had recently damaged their car. They also said they had stopped chasing
McKinney when they saw him running toward police vehicles parked at the murder
scene. In addition, one of the chasers, Darnell Fearence, has corroborated McKinney’s
version of the chase and claimed other men were responsible for the murder.
And another man, Anthony Drake, said he was “present” when the murder
occurred and that McKinney was innocent.

In 2006, Protess and students shared their research with Northwestern University’s
Center on Wrongful Convictions at the law school’s Bluhm Legal Clinic. Last
year, the clinic filed a post-conviction petition in the Circuit Court of Cook
County, seeking to vacate McKinney’s conviction or get a new trial, and the
Chicago Sun-Times ran a story and editorial concerning the case. Although students
provided videotaped interviews with many witnesses, the state’s attorney’s office
subpoenaed students’ grades, e-mail messages and grade criteria.

When Northwestern University and Protess made a motion to quash the state’s
attorney’s subpoena for those documents, they wrote that collecting such wide-ranging
records would be “overly burdensome, particularly where the responsive
records bear little-to-no relevance to the central question of McKinney’s post-conviction
proceedings – that is, whether McKinney’s conviction should be overturned.”
Also, they wrote that the court “must balance the needs of truth and excessive
burden.”

Protess and his students have turned over all audio and videotapes created
as a result of the McKinney investigation. The remainder of the documents and
testimony sought amount to “a fishing expedition,” the university
and Protess contend in court materials.

In addition, the university and Protess argue in court documents that “the
Illinois Reporter’s Privilege Act was created to protect First Amendment interests
in preserving both the press’s ability to gather and disseminate information
and its independence and protects persons from being compelled ‘to disclose
the source of any information obtained by a reporter’ with very limited exceptions.”
The act, they contend, assures a better informed public, for “it allows
reporters to seek the truth wherever it is to be found.”

Also, protecting information gathered by Protess and student reporters helps
to encourage “the free flow of information” and helps them and the
Innocence Project to keep serving the public by “acting as an effective
check on the criminal justice system,” they argue.

As for the state attorney’s argument that students are not real journalists,
Protess and the university contend that the state “gives lip service to
an argument that the work respondents did on the McKinney case does not amount
to journalism.” They also argue that the act defines a reporter as “any
person regularly engaged in the business of collecting, writing or editing news
for publication through a news medium on a full-time or part-time basis.”
Also, they contend that under Protess’s direction, information collected by
the Innocence Project has resulted in media coverage by the Sun-Times, The New
York Times, The Washington Post, Newsweek and CBS News.

In addition, Protess and the university argue that the state’s attorney’s office
failed to articulate how students’ educational records are relevant to the question
of whether McKinney’s conviction should be overturned.

The Chicago Headline Club, a chapter of the national Society of Professional
Journalists, strongly protests the subpoenas issued by the state’s attorney’s
office. The club issued this statement:

“The Headline Club believes Alvarez should rescind the subpoenas and stop
pressuring Medill Innocence Project students to reveal all of their notes, recordings,
e-mails and even grades given. Instead, her office should use what they have
already from Medill students as a basis for their own further investigation.
We recommend applause for the students’ efforts to protect the innocent.”

In the state’s attorney’s 25-page response to deny the motion to quash the
subpoena, staffers argue, “Justice requires an objective review of all
evidence, not simply the evidence the school now feels is supportive of their
version of events” and that materials sought should be turned over to create
“an accurate assessment of witnesses’ credibility and other essential issues.”

Also, they argue that Protess’s syllabus and grading criteria are significant;
they reason that students were motivated to get good grades: “If students
are told they will get an “A plus” if they get exculpatory evidence,
surely this would go to bias and interest.”

The state’s attorney’s lawyers contend that Protess and his students are not
reporters defined by the act. “The school acted as an investigative agency,
as opposed to a news gathering agency intent on publishing the news,” they
argue.

In conclusion, the state’s attorney’s office concluded that they are involved
in a truth-seeking process and that the other side needs to demonstrate McKinney’s
innocence through credible testimony: “To withhold voluminous materials
from the truth-seeking process is truly ironic behavior given the school’s mission
of justice.”

The university and Protess conclude, in a brief to quash the state’s attorney’s
subpoenas, “The issue at McKinney’s upcoming evidentiary hearing is whether
he is guilty of the crime for which he was convicted. The syllabus for Protess’s
journalism class, the grades and grading criteria for his students and a pile
of expense forms are not relevant to this issue in any legitimate sense.”

Also, they contend that the state’s attorney’s office is undermining the ability
of the Innocence Project to do its work in the future, and they describe the
state’s attorney’s office’s demands as “highly intrusive” and “highly
disruptive” and not protected by the Illinois Reporter’s Privilege Act.