There 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and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .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.
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