Undergraduate journalism students at Northwestern University investigate cases where it appears the wrong person may have been sentenced for a crime they did not commit. To date, the course taught by professor David Protess has exonerated of 11 men–including 5 on death row–and been featured widely on television and print media.
Students working on a case now known as the ‘Medill Innocence Project‘ uncovered evidence suggesting a man named Anthony McKinney has been wrongfully incarcerated for 31 years over the slaying of a security guard (details here). After their investigation ended in 2006, the findings were published on the project’s website and informed a 2008 front-page piece in The Chicago Sun-Times. As a result, Northwestern Law School’s Center on Wrongful Convictions filed a petition for a new hearing on behalf of McKinney. Although students have already turned over videotaped interviews and affidavits for the case, state prosecutors want more. They issued a subpoena for e-mails, grades, expense reports, and other course materials to explore whether there was “bias, motive and interest” in the project. Cook County State’s Attorney Anita Alvarez claims students are ineligible for the privilege to protect their sources because they did not write the articles.
But wait a second… it sure doesn’t seem right to be interrogating investigators. In the Huffington Post, Judge H. Lee Sarokin goes so far as to compare the subpoena to tactics employed by the Gestapo, pointing out:
If the prosecutor here were seeking incriminating (rather than exonerating) evidence derived from the student interviews..their purpose, but not necessarily their legal position, would be justified and acceptable. But the effort to investigate the students themselves warrants that [Gestapo] label.
The New York Times has more on why The Innocence Project is fighting the subpoena:
Professor Protess..is incensed by the prosecutor’s tactical aggression toward his students.
“If you can’t attack the message, you attack the messenger,” Professor Protess said.
“I think that prosecutors and other public officials see that much of the investigative reporting is coming out of nonprofits and are beginning to take aim at them,” he added.
He may be right. The record of Protess’ students makes it clear that they are engaged in significant journalism that has been recognized and applauded around the country. Therefore, in my opinion there is no question they should be entitled to protect sources and materials related to the investigation. What do readers think?
November 16th, 2009 at 12:36 pm
I stand with the students and professor in protest. I cannot believe they are being treated as if they are the ones on trial. Shame on Cook County.
November 16th, 2009 at 12:40 pm
It’s obvious. More interesting to me: the first “Gestapo” post by Sarokin is missing in action.
November 16th, 2009 at 1:50 pm
First, if they were acting as investigators/advocates and didn’t write the piece of journalism (if, in fact, posting on a college webpage even constitutes “journalism”), then I don’t see how the privilege applies to them. (A privilege which I believe should exist, but be strictly construed.)
Moreover, I think that before we consider potentially releasing a cold-blooded killer out on the streets (which, if this man is guilty, is what we would be doing), it behooves us to investigate fully to determine if the conclusion reached by these people is a fair conclusion of all of the evidence and a reasoned objective conclusion, and not a piece of one-sided advocacy. Even skilled journalists are not exactly skilled purveyors of the objective interpretation of factual information. I don’t see how journalism-fetuses would be any more so.
It doesn’t take a genius to recognize that “Journalism Project Frees Innocent Man” is a much sexier headline than, “Journalism Students Find Another Prisoner Claiming Innocence Actually Guilty.” I don’t think it’s beyond the pale to ensure that we don’t commit an injustice (such as releasing a cold-blooded murder) without being sure that this isn’t a case of “releasing a murderer in order to improve my resume” by the student.
(For the record, [and to preempt comments which I suspect are coming], I am a big supporter of these projects and specifically will not support the death penalty exactly because of their success. But that doesn’t mean that they are always right, or that they should be given any special privileges.)
November 16th, 2009 at 1:57 pm
“Even skilled journalists are not exactly skilled purveyors…”
should have read:
“Even seasoned journalists are not exactly skilled purveyors…”
November 16th, 2009 at 1:58 pm
While I agree that the prosecutor’s actions here are gross violations of justice, I don’t think that the journalism defense is appropriate. These students were not engaging in journalism. The closest category I can put them into would be “amicus curiae”. Consider how quickly such a subpoena would be quashed if it were directed against the defendant’s attorneys. Indeed, perhaps the best defense here might be for the attorneys who filed the request for a hearing to declare that the investigators are covered under the same protections afforded to attorneys (in effect, as unpaid subcontractors to the attorneys).
In one sense, I can understand the frustration that prosecutors must feel in this regard: “Is any case ever closed?” The notion that every single case they prosecute remains open forever must be intensely frustrating. Yet the real value of such innocence investigations, I think, will be to tighten up the trial process. Prosecutors do get away with dirty tricks sometimes, and investigations such as these serve as a powerful disincentive to unfair tactics. Sure, you (the prosecutor) might get away with it right now, but can you be certain that your trick will remain a secret forever? That kind of thinking tends to keep people on the straight and narrow. If prosecutors learn that their case must be FOREVER airtight, not merely temporarily airtight, they’ll produce better results. True, prosecutions will become more expensive, but what’s the cost of re-opening a case? And what’s the cost to society when an innocent person is convicted and the guilty go unpunished?
November 16th, 2009 at 2:02 pm
Woody, you write:
“it behooves us to investigate fully to determine if the conclusion reached by these people is a fair conclusion of all of the evidence and a reasoned objective conclusion, and not a piece of one-sided advocacy.”
That is precisely the objective of such investigative projects. They are not requesting the release of the prisoner, they are requesting a hearing on the questions they have raised. Such a hearing would provide precisely the full investigation you suggest.
Also, the notion of one-sided advocacy is central to our justice system. There are at least two parties to every case, be it civil or criminal. The two parties have advocates who argue their cases in front of judges and possibly juries. The underlying belief is that the best way to reach truth is to have two one-sided advocates duke it out in court.
November 16th, 2009 at 2:50 pm
I’m completely against any attempt on the part of prosecutors to intimidate or discourage further investigations such as this. It is, precisely and simply, a symptom of a police state. I certainly hope that this is not what is happening here.
However, I’m concerned that it is. John Ralston Saul’s “Voltaire’s Bastards” has demonstrated the takeover of our societal elites by homogenous groups trained in “rationality” devoid of ethics, in which the only measures of success are efficiency and competency and “winning” – and in this case, “winning” means not admitting your office made a mistake, even if as a prosecutor you were in diapers when the mistake was made.
November 17th, 2009 at 9:57 am
Erasmussimo,
But in order to get the hearing, they have to make a showing that this man who was convicted by a jury of his peers, who found him guilty of the crime beyond a reasonable doubt, is, in fact, innocent. And I believe that a peek into the motives and work processes of those who are asserting that he is innocent, is not an unreasonable request, given the magnitude of the injustice if he were released and is guilty.
And, yes, one-sided advocacy is central to our legal system. But these students are not portraying themselves as being one-sided advocates. They are journalist (or, at least, journalism students) which, to me, suggests that they are portraying themselves as objective third-parties, and not one-sided advocates.
Just as a party’s expert is subject to discovery requests to uncover bias and motive, I see no problem with the prosecution (which has a legal and moral responsible to ensure this guy stays in prison if he’s guilty) trying to determine what these people actually are, so that the decision maker can have the proper context to put their conclusions. A claim of innocence by a criminal or an advocate for a criminal is a dime a dozen and should be viewed as such. An objective investigation which considers all the evidence and concludes innocence is another matter.
I don’t believe that they are either “amicus curiae” or unpaid contractors of the defense attorneys, so the protections afforded them would not apply. They are most akin to officious intermeddlers, but are not looking for compensation for their work.
November 17th, 2009 at 2:42 pm
Re Woody Tanaka
Before Mr. Tanaka starts painting the prosecutors as selfless defenders of the public wheal, I suggest that he mosey over to Ed Braytons’ blog in which he will find chapter and verse of incidents of prosecutorial misconduct. I think it is totally obvious that this nothing but an attempt by the authorities to intimidate the students and deter other such investigations in the future. The fact is that prosecutors just don’t like the idea of convicted individuals being cleared and released from prison as the publicity from such events makes their job of convicting defendants harder in the future.
November 18th, 2009 at 9:26 am
SLC:
“Before Mr. Tanaka starts painting the prosecutors as selfless defenders of the public wheal,”
I’m doing no such thing. I am merely pointing out that while keeping an innocent man in prison is an injustice, so is letting a convicted murderer free. If we are going to release this man, found guilty beyond a reasonable doubt, then we must be certain that we are doing on evidence and analysis that is objectively correct and not merely a knee-jerk exercise of naive anti-authoritarianism.
“I suggest that he mosey over to Ed Braytons’ blog in which he will find chapter and verse of incidents of prosecutorial misconduct.”
So? Good for Ed. None of that means that this exercise of prosecutorial conduct constitutes misconduct or is even objectionable. A court may very well find it is, and if so, so be it. But to me it is exceedingly reasonable to examine the baises of these students when examining their opinions on the question of guilt.
“I think it is totally obvious that this nothing but an attempt by the authorities…”
Wow, and you’ve come to this “totally obvious” conclusion based on nothing but your pre-existing biases and after having read nothing but two opinion pieces — without the benefit of any of the first hand evidence, without hearing testimony from one person, without any documentation, without looking at one legal pleading or hearing argument on this issue…
Why, perhaps we should just leave the punishment of every criminal suspects in the US for you to decide, seeing as how you can discern the “totally obvious” truth from reading just two newspaper opinion pieces on the matter. Our system of justice would be truly safe in the hands of a Solomon such as you.