Shooting the Messenger: Prosecutors Subpoena Grades and Emails of Students of Innocence Project

logomedill_logoThere is an incredible story out of Chicago and my alma mater Northwestern University. The Cook County District Attorney has issued a sweeping subpoena to the Innocence Project at the acclaimed Medill School of Journalism — demanding such things as the grades and emails of students who worked on an investigation of the case of Anthony McKinney. The students found compelling evidence of innocence and the prosecutors are now pounding them with demands for personal information and communications. I just completed doing NPR’s Talk of the Nation on the case with Professor Barry Scheck.

The students took three years to compile evidence of McKinney’s possible innocence. He has been in jail for 31 years for a murder that he may not have committed. McKinney was convicted of the murder of Donald Lundahl, a security guard on Sept. 15, 1978.

Professor David Protess of the university’s Medill School of Journalism was hit by the subpoena demanding grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .

It is a transparently hostile effort directed at the students who have previously helped uncover at least 11 false convictions in Illinois. The Chicago prosecutors have been repeatedly embarrassed by these cases of innocence and seem to be much more interested in finding ways to disparage the students than confirming the innocence of this man.

Usually these fights over journalistic privilege begin with an effort to obtain evidence of guilt of a suspect. Here prosecutors are seeking evidence of the motivation of the students — a marginally relevant inquiry at best. The project had already made available its taped interviews with witnesses who have recanted prior or contradicted prior testimony.

Prosecutors are arguing that these are not actual journalists covered under the Reporters Privilege under Illinois law. University student journalists are routinely given the same protection as other journalists. However, the state may argue that they do not fit the definition below:

§ 8-902. Definitions. As used in this Act:
(a) “reporter” means 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; and includes any person who was a reporter at the time the information sought was procured or obtained.
(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) “source” means the person or means from or through which the news or information was obtained.

It would have been wiser to place this project under the law school where the students would have been protected by attorney-client privilege.

The Supreme Court has long given little protection to journalists, particularly student journalists. In Zurcher v. Stanford Daily , 436 U.S. 547 (1978), the Supreme Court rejected first amendment and fourth amendment challenges to a police search of a press office — an effort to obtain photographs of a demonstration that took place at the campus’ medical center in April 1971. The Court rejected claims of any special protection for journalists — prompting the push for “shield laws” like the one in Illinois.

The subpoena here is abusive and excessive. It is shows not only hostility toward the Innocence Project but a contempt for journalistic work by Anita Alvarez, the State’s Attorney for Cook County.

For the full story, click here.

33 thoughts on “Shooting the Messenger: Prosecutors Subpoena Grades and Emails of Students of Innocence Project

  1. In the criminal justice system, the people are attacked by two
    separate yet equally corrupt groups: the police who commit crimes and the district attorneys who prosecute those who expose corruption.

  2. The 30 minute ‘Talk of the Nation’ program is well worth the listen. Full disclosure: The program is actually only 29 minutes and 56 seconds.

    Jill, good one.

  3. The 30-minute ‘Talk of the Nation’ program is well worth the listen. Full disclosure: The program is actually only 29 minutes and 56 seconds.

    Jill, good one.

  4. I don’t get it. I just don’t.
    Journalism students get harassed in this obscene way — their rights seemingly tossed out the window…
    but anyone who wants to take a gun to church may.

  5. The professor is correct in that these student should have been peeking out under the guise of the Project Innocence and then the “Investigators” would have been absolutely protected under the IL work product rule.

    I wonder what the DA is interested in learning. If I were the Judge I would grant it and conduct an in camera review of all documents and redact any information that is related to any other investigation. It sounds like this is a great fishing expedition and just because IL is on a great lake may not make it a great state.

    If memory serves me correctly Kwame Kilpatrick Attorneys had some similar issues with regards to what is protected and what isn’t. And the presiding Judge wanted to conduct an In Camera review of the materials before the information was released to either side. The Attorney for the Plaintiff reissued another subpoena and obtained the same information . However, this information was used as a bargaining tool for settlement of the primary case. I believe 5 or 7 attorneys were grieved by the Attorney Grievance Commission over this and it has made it to the Attorney Discipline Board. Where it is right now I am not sure.

    I do think that since the barn door was not only opened but the damn thing got broken on the way that the students are not protected under any privilege. But the Judge can fashion a remedy in equity and do what is right.

  6. Last time I checked students are citizens of the United States.

    I would tell them hell no, move to quash, and force them into a discussion with the court, then if necessary take it up once a record is established and built.

    Just because it is Halloween doesn’t mean they can act like the witches in Salem.

    The Crucible is not an example we wish to follow.

  7. I’m glad JT picked up on this – I am embarrassed by my own elected official, State’s Attorney Alvarez (I’m a Chicagoan).

    From the NYT article, the prosecutor’s spokesperson said they were trying to determine “whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.” (Quoting the NYT writer, not directly quoting the spokesperson.)

    So my non-lawyer mind asks, “So what?” How does that motivation make any difference to the prosecutor, let alone the material facts of this case?

  8. TomD.Arch,

    I’m glad JT picked up on this – I am embarrassed by my own elected official, State’s Attorney Alvarez (I’m a Chicagoan).
    ……

    So my non-lawyer mind asks, “So what?” How does that motivation make any difference to the prosecutor, let alone the material facts of this case?
    ********************

    What ever student wants is to be noticed by the professor, especially in a college such as this so a recommendation will be made so that they can land that ideal first job. I was not one of them. Now from a legal side if the student thought that they could find someone and embellish some little fact to make it look better for them, then they might just do that. I had a couple of friends that were journalism students one was about as cut throat as you could get the other one I recall was as meek as the salt of the earth. One took chances and the other wanted security. A few others work for NPR. When you stayed in college as long as I did you get to meet a whole host of people.

    These students like witnesses will tell you what you want to hear, now when they get on the witness stand they will take a different approach. Most of my witnesses maintained the same story through out. I would not prep them but would inform them that they must tell the truth to me regardless if I liked it or not.

    Unfortunately we do have people out there that want that 5 minutes of fame and will sell a kid out in order to have just that. Think balloon boy.

  9. There were no witches in Salem–just innocent people accused and convicted of witchcraft. Maybe if there were more Innocence Projects, fewer innocent people would remain imprisoned for crimes they didn’t commit.

  10. AY, “I wonder what the DA is interested in learning.” Probably not a thing a reasonable speculation aside. This is the equivalant of a SLAPP lawsuit, it’s a tool for intimidation:

    (from Wikipedia)
    A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP.

    The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.

    ——
    I do agree that the Innocence Project should be under the Law School or at least jointly held so that these, and future students can be protected.

    Good one Jill.

  11. I agree with the response from Northwestern’s administration. They are intending to tell the Cook County prosecutors to take a hike. I also think that the University will be successful in keeping the students under the Illinois Reporters Privilege act.

  12. Elaine M. 1, October 26, 2009 at 7:59 pm

    There were no witches in Salem–just innocent people accused and convicted of witchcraft. Maybe if there were more Innocence Projects, fewer innocent people would remain imprisoned for crimes they didn’t commit.
    **********************

    Elaine, Elaine, Elaine,

    How can you be so certain? Did you not hear that all of the witches died. That is why they did that Death or Trial by Ordeal thingy? It most certainly clearer out the possibility of any witches being left. They all died.

  13. lottakatz,

    Discovery is open and both side “have” to give the other side any information that is known to them. Both the Defendant and Prosecution are obligated to give the other side even damaging information. While I agree with you in theory that slapp is a tactic that is used, in this case I do not agree.

    I think that the DA is wanting to know how much more and what other embarrassing information that these students have possession of. This is the conundrum for these students and the defense attorney. If the Defense attorney has knowledge then it must be disclosed “if they intend to use it at trial or other hearing.” If they do not then it does not need to be proffered by the defense attorney.

    There are a lot of ways that this can be worked. I understand from both sides Plaintiff and Defendant the issues. I think that I know what and why the DA wants it and that is not to be made the fool.

  14. AY, AY, AY–

    My mother grew up near the place known as “Gallows Hill.” I was raised not far from that area myself. Some years ago, I worked with a group of teachers to develop educational outreach materials about the witchcraft hysteria for some museums in the area.

    I don’t recall there being any Trial by Ordeal thingy. Those convicted of witchcraft wuz hanged…except for Giles Corey who was crushed to death under a board piled with heavy stones.

    BTW, there are people in the Salem area today who claim to be witches–including a woman named Laurie Cabot. You can check out her website.

    http://www.lauriecabot.com

  15. rafflaw 1, October 26, 2009 at 9:31 pm

    I agree with the response from Northwestern’s administration. They are intending to tell the Cook County prosecutors to take a hike. I also think that the University will be successful in keeping the students under the Illinois Reporters Privilege act.
    ***************
    Sir while I generally agree with you on this issue I must protest your assertion. These were students working for a professor in the school of journalism. They are not cub reporters or doing anything with any magazine or even the school newspaper. If so I think that the asserting of the privileged would attach and that this is even speculative at best considering the most recent one that received national coverage and Scooter Libby took the fall. This was I understand was for Dick Cheney.

    How long did Judith Miller spend incarcerated until she was freed?

    Reporter Jailed After Refusing to Name Source
    link: http://www.judithmiller.com/537/reporter-jailed-after-refusing-to-name-source

    Jailed reporter reaches deal in CIA leak probe
    The New York Times’ Miller: ‘It’s good to be free’

    (CNN) — After spending 12 weeks in jail for refusing to name a source, The New York Times reporter Judith Miller testified Friday before a federal grand jury looking into a CIA leak case after her source gave her permission.

    Link: http://www.cnn.com/2005/POLITICS/09/30/cia.leak/index.html

    And this was a real reporter. Ok, real depends on the definition of the rag…..

  16. AY,
    I think the good news here is that this is Illinois law and not what Judith Miller was dealing with. Secondly,if you are correct that the prosecutor is merely looking for any information that may embarass him/her, then I believe that the judge will see through their fishing expedition. I do agree with Prof. Turley that the journalism program should be run through the law school in order to give future students more protection.

  17. Dredd writes: Last time I checked students are citizens of the United States.

    sure they are citizens but they do not have rights. school newspapers are not protected by 1st amendment that the Evening Outrage enjoys.

  18. AY,

    I didn’t say the maneuver wasn’t legal, I said that it was the equivalent of a SLAPP suit. I see it as a attempt to intimidate the Freedom Project’s ability to enlist future volunteers and shunt the current investigation into the innocence or guilt of Mckinney into tangential and speculative waters by focusing on the motives of the investigators. The law has never been justice, just a tool. I hope the Freedom Project has similarly creative and devious hard-a** counsel on their payroll.

  19. rafflaw,

    I think the good news here is that this is Illinois law and not what Judith Miller was dealing with.

    In someways it is, as Miller was holding onto confidences that had heard from another source. She was not the direct pipeline of information.
    **************************
    Secondly,if you are correct that the prosecutor is merely looking for any information that may embarass him/her, then I believe that the judge will see through their fishing expedition.

    I do believe that this is a fishing expedition of the greatest magnitude. Why else would they want this information? I believe that the article leaves nothing to the imagination. Professor Protess is pissed and he should be, but in reality what protection does a mere professor have? We are not speaking of any immunity granted by law that I am aware of? I always stand to be corrected.

    ***********************
    I do agree with Prof. Turley that the journalism program should be run through the law school in order to give future students more protection.

    This could not be more accurate. However, most professors have egos the size of Texas and do not play well with others. I think that this campaign was started by the Journalism professor. If under the guy-wire of the law school of course attorney work product. In my mind the above seems to make sense….

  20. lottakatz,

    I didn’t say the maneuver wasn’t legal, I said that it was the equivalent of a SLAPP suit.

    On this we agree.

    ***********************
    I see it as a attempt to intimidate the Freedom Project’s ability to enlist future volunteers and shunt the current investigation into the innocence or guilt of Mckinney into tangential and speculative waters by focusing on the motives of the investigators.

    I see this as a CYA approach for the state. Do not forget that Ryan in 2000 halted the death penalty:

    He stated that “We have now freed more people than we have put to death under our system,” he said. “There is a flaw in the system, without question, and it needs to be studied.”[11] At the time, Illinois had executed 12 people since the reinstitution of the death penalty in 1977, but had been forced to release 13 people based on new evidence. Ryan called for a commission to study the issue, while noting, “I still believe the death penalty is a proper response to heinous crimes, but I want to make sure … that the person who is put to death is absolutely guilty.”

    The issue had garnered the attention of the public when a death row inmate, Anthony Porter, who had spent 15 years on death row, was within two days of being executed when his lawyers won a stay on the grounds that he may have been mentally retarded. He was ultimately exonerated with the help of a group of student journalists at Northwestern University who had uncovered evidence that was used to prove his innocence. In 1999 Porter was released, charges were subsequently dropped, and another person, Alstory Simon, confessed and pleaded guilty to the crime Porter had been erroneously convicted of.

    Link: http://en.wikipedia.org/wiki/George_Ryan#Opposition_to_capital_punishment

    I am not saying anything good ever came out of Illinois as Ryan was later convicted of extortion and got this 6.5 years. I guess a life in the UK is worth about the same in time.
    ********************************
    The law has never been justice, just a tool. I hope the Freedom Project has similarly creative and devious hard-a** counsel on their payroll.

    I agree about the use of the law. I do hope that the FP does have a hard assed attorney on the payroll. But for a Great Law School I think the students would have whatever attorney that was under contract with the school to represent the students.

    I think that the School of Journalism is going to be stuck with hefty legal fees. As this was a school sanctioned activity that I am almost sure of they were acting at the direction of the professor hence this created an agency relationship.

  21. AY writes: The law has never been justice, just a tool.

    “justice is the handmaiden of the law. the law is the handmaiden of justice. Works both ways” Judge Roy Bean

  22. GWLawSchoolMom 1, October 27, 2009 at 2:55 pm

    AY writes: The law has never been justice, just a tool.
    Thank you for the attribute, however I must protest and state that this is actually LottaLatz’s. Although, I do not disagree with the premise.

    Now you wrote:

    “justice is the handmaiden of the law. the law is the handmaiden of justice. Works both ways” Judge Roy Bean

    Is it not more accurate to state the following and place it in context as Sam Dodd was about to be found guilty for killing a Chink?

    Judge Roy Bean: All men stand equal before the law. And I will hang a man for killing anyone, including Chinks, greasers, or niggers! I’m very advanced in my views and outspoken.

    Sam Dodd: There’s no place in that book that…

    “Judge Roy Bean: Trust in my judgment of the book. Besides, you’re gonna hang no matter what it says in there, ’cause I am the law, and the law is the handmaiden of justice. Get a rope. ”

    Or this:

    Judge Roy Bean: The last time that bear ate a lawyer, he had the runs for thirty-three days.

    and finally this is my anthology:

    Judge Roy Bean: I know the law. And I have spent my entire life in its flagrant disregard.

    If you only knew me, you would see how much of the above quote is so true of me….

  23. Whatever the prosecutor’s reason, however the judge rules, if ever the university puts such projects under the protection of its law school, these particular students are getting a very real education in the reality of life within the profession they are studying. I trust that all practicing professionals involved in this situation are taking advantage of the turn of events to really teach these young people how to recognize the true motivations of all the parties involved and what decision making process they each should invoke in order to handle their own emotions and actions properly under this pressure. Used constructively, this course of events will produce some very valuable and very well educated graduates.

  24. A Handmaidens Tale

    GWLSM: ““justice is the handmaiden of the law. the law is the handmaiden of justice. Works both ways” Judge Roy Bean”

    ———

    Good quote. That’s a genteel way of phrasing it. :-)
    Handmaiden’s being attendants, companions and servants the law being a handmaiden to justice seems to me to be the proper order of things, justice should not serve the law, as an ideal it should be the master that informs the framing of the law. I think our founders recognized that justice was not always well served by the law and over time and as citizens became more enlightened even the concept of what is just may change.

    Another thread is discussing the ‘virtue’ of the jury system (below link) and I think the there was a recognition from the very beginning that due to the limitations of the law a jury of peers needed to be in place to take up the cause of seeking justice at the point that the law is an ineffective tool. Having served on a few juries I’m not entirely comfortable with that optimism but something needs to be in place for when the law ceases to serve it’s master faithfully.

    http://jonathanturley.org/2009/10/26/twelve-ambivalent-men-washington-jury-polled-after-not-guilty-verdict-only-to-be-sent-back-and-then-reaches-guilty-verdict/#more-16542

  25. Following is a link to a recent editorial on this subject at The Nation.

    Here’s an excerpt; “Judge Cannon will soon rule on the validity of the state’s subpoena. We urge her to throw it out and order a prompt evidentiary hearing. The kind of difficult reporting undertaken by the Medill Innocence Project should be celebrated, not undermined. It’s shocking that the state would rather keep an innocent man behind bars than admit a mistake.”

    http://www.thenation.com/doc/20091123/editors

  26. Prosecutors claim students paid 2 witnesses
    By KAREN HAWKINS

    AP
    posted: 25 MINUTES AGO

    CHICAGO -Prosecutors claimed in court Tuesday that Northwestern University journalism students paid two witnesses in order to make their case that an innocent man was wrongly convicted of murder.

    The allegations came in filings during a Cook County criminal court hearing on a new trial for Anthony McKinney, who is serving a life sentence for the 1978 murder of a security guard.
    Students have presented evidence, including interviews with witnesses, suggesting that several other men committed the crime. But prosecutors are questioning the credibility of their witnesses, including two who say the students and a Northwestern private investigator gave them money in exchange for interviews.

    Link: http://money.aol.com/article/prosecutors-claim-students-paid-2/758069?v=aolrssdf

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