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and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .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

  2. 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….

  3. 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.

  4. 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

  5. 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….

  6. 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.

  7. 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.

    https://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

  8. 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

  9. 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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